Tanious v South Eastern Sydney Local Health District

1. [1]

   THE COURT: On 14 November 2012, the appellant’s father died at the age of 91 years. He had, for some years, suffered from a number of chronic conditions. On 15 March 2013, the appellant, Mofeed Louis Tanious, commenced proceedings against a number of defendants. On 26 November 2013, the appellant filed an amended statement of claim in the Common Law Division. The defendants included (giving them their proper names) the South Eastern Sydney Local Health District, the NSW Public Guardian and the Health Care Complaints Commission. Individuals named as defendants were staff or officers of those agencies. In particular, the first named defendant was Dr Chris Dedousis, a medical practitioner employed at St George Hospital, which constitutes part of the first named agency.

2. [2]

   The State Crown Solicitor acts for each of the defendants. On 2 August 2013, the defendants filed a motion seeking to have the proceedings struck out. That motion originally related to the statement of claim first filed, but when dealt with by a judgment of Harrison AsJ on 12 February 2014, it was the amended statement of claim which was the subject of consideration.

3. [3]

   On 12 February 2014 Harrison AsJ dismissed the proceedings and ordered that the plaintiff pay the defendants’ costs. [1] On 20 February 2014 the appellant sought review of the decision by a judge of the Court. That application came before Price J on 2 July 2014. The motion was dismissed. [2] Accordingly, the order dismissing the proceedings remained in effect. (The right of appeal from an Associate Justice to a judge of the Court is provided by the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), r 49.4, except in a case where an appeal lies to the Court of Appeal pursuant to the Supreme Court Rules 1970 (NSW), Pt 60, r 17: a decision on application for summary dismissal of proceedings was properly before a judge of the Court, pursuant to r 17(k).)

4. [4]

   From that decision, the appellant sought leave to appeal to this Court. On 6 February 2015 leave was granted, limited to the refusal to review so much of the judgment of Harrison AsJ as concerned the proceedings against the Local Health District and Dr Dedousis. The application for leave to appeal was otherwise dismissed.

5. [5]

   As appears from the transcript of the leave application on 6 February 2015, the conclusions of Harrison AsJ and Price J that the pleading was seriously defective were not in doubt; the question was whether the orders made dismissing the proceedings (as opposed to the pleadings) were appropriate, or whether the appellant should have been given a further opportunity to replead.

Background circumstances

1. [6]

   Prior to 31 October 2010 the appellant had care of his father, who was then living with him at his home. On that date, his father was taken by ambulance to St George Hospital, suffering from hypernatremia (indicating an abnormally high level of sodium in the blood), difficulty in moving and slurred speech. Members of the St George Hospital Aged Care Team, under the supervision of Dr Dedousis, had concerns as to the appellant’s ability to care for his father at home. The father remained in St George Hospital until 16 February 2011 when he was discharged into the care of his daughter (the appellant’s sister). By that stage a guardianship order had been made and in the following months there were numerous hearings, including before the Guardianship Tribunal and the Administrative Decisions Tribunal, concerning the arrangements for care of the appellant’s father. Attempts to challenge the arrangements were ultimately unsuccessful, a review of the decisions was dismissed by this Court: Tanious v The Public Guardian. [3]

The pleading

1. [7]

   The amended statement of claim was not a lengthy document. So far as it related to the Local Health District and Dr Dedousis, it involved one paragraph extending for half a page. The particulars covered a further page. The pleading is inadequate, in part because of the appellant’s difficulties with written English, which is not his first language. However, a generous reading of the pleading reveals three elements of a cause of action.

2. [8]

   First, it is reasonably clear that the primary harm relied upon is mistreatment of the appellant’s father in the hospital, consequentially causing humiliation and shock to the appellant. The basis of the mistreatment is not clearly articulated, but includes a proposition that there was “wrong imprisonment of plaintiff’s father in hospital [for] more than three months without any consent”. Secondly, it is alleged that:

3. [9]

   Thirdly, the claim was for damages ($1 million), as “exemplary compensation … due to humiliation and a lot of stress plaintiff lived in [for] more than two years as a result of their professional negligence and misconduct.”

4. [10]

   The particulars do not helpfully expand upon these statements. Nevertheless, and however badly expressed, it is reasonably clear that the appellant was asserting mental harm to himself, as a result of breaches of duty of care in the treatment by the defendants of his father. This articulates what is sometimes described as a “secondary or derivative claim.” The basis of such a claim was explained in Lane v Northern NSW Local Health District (No 3), [4] a case dealing with proceedings brought by two daughters in respect of the care provided to their mother. The nature of the cause of action was explained in the following passages.

5. [11]

   As further explained in Lane, [5] to succeed with such a claim the appellant must establish (a) a sufficient relationship between the defendants and the plaintiff; (b) that the defendants had been negligent in the treatment of his father; (c) that the negligent treatment had caused a deterioration in the health or well-being of his father, and (d) the father’s condition so caused had in turn caused the plaintiff to suffer from a psychiatric condition.

6. [12]

   It is by no means clear that the appellant will be able to establish those matters. Nevertheless, the proceedings have not reached the stage where he has been required to present any evidence. Indeed, it is not yet known which if any of the matters identified above will be disputed by the defendants.

The primary judgments

1. [13]

   Relevantly for present purposes, Harrison AsJ dealt with the issues presented before her on alternative grounds. Thus, she dealt first with the question of a duty of care. She stated at [48]:

2. [14]

   In case she was wrong in that regard, Harrison AsJ continued to deal with a question of breach, albeit in a manner which tended to suggest an arguable understanding of the scope of the necessary duty. Harrison AsJ stated:

3. [15]

   Price J noted that one of the reasons the amended statement of claim was dismissed was that the plaintiff’s claim was not properly pleaded. [6] That was undoubtedly a sound basis for striking out the pleading, but was not sufficient in itself, to warrant dismissal of the proceedings without an opportunity to replead, unless the Court were to be satisfied either that there was no reasonable cause of action available or that there was some other reason (such as the history of the proceedings) why leave to replead should not be granted.

4. [16]

   Price J then identified as another reason that the proceedings were dismissed the finding of Harrison AsJ that “no reasonable cause of action was disclosed.” Price J continued:

Appeal from summary judgment

1. [17]

   The matters identified by Price J (at [38]) were arguable bases for alleging a breach of duty on the part of the defendants to the appellant’s father. (Whether they could be established as matters of fact is a different issue.) Although it is true that the nature of the duty owed to the appellant was not articulated in terms which would be expected of a competent legal practitioner, the allegations of breach of duty to the appellant’s father, together with the harm allegedly suffered by the appellant, arguably indicate an intention to rely on a secondary or derivative duty of the kind referred to in Lane.

2. [18]

   In these circumstances, the Court below was entitled to strike out the amended statement of claim. However, unless, for reasons which were not articulated, the Court were satisfied that, given an opportunity to replead the appellant would be unable to articulate an available cause of action or there was some other reason why liberty to replead should not in the proper exercise of the Court’s discretion have been granted, an opportunity to replead on the limited basis identified above, with respect to the Local Health District and Dr Dedousis alone, should have been provided. Other than in relation to a request by the appellant to amend his claim from a claim for exemplary compensation under the Civil Liability Act to a claim for compensation under the Compensation to Relatives Act 1897 (NSW), Price J did not address the question whether there had been an error by Harrison AsJ in the exercise of the discretion whether to grant liberty to replead; nor did Price J address the question whether such leave should be granted. (It may be that this was because he was not asked to do so.)

3. [19]

   It may be noted that the approach of the respondents in this Court has been somewhat ambivalent. In the course of the leave application, Ms Boyd, appearing for the respondents, expressly agreed that Price J was in error in stating that none of the plaintiff’s complaints were capable of giving rise to a duty of care owed by the doctor or the hospital to the appellant. [7] However, leave having been granted and an amended notice of appeal having been filed on 25 February 2015, the respondents’ immediate response was to file a notice of motion seeking to have the amended notice of appeal struck out. Various orders were made by the Registrar which appear to have satisfied the respondents that the appeal could proceed, but it is doubtful if much was achieved by that motion.

4. [20]

   The written submissions filed on 11 May 2015 repeated the proposition that the amended notice of appeal was “obviously defective.” An attack was then made on one ground that it was “incomprehensible” and failed to identify error in the judgment of Price J. There was no reference in the written submissions to the simple proposition which had been accepted by Ms Boyd representing the defendants on the leave application.

5. [21]

   With respect to the other ground, the submissions noted that numerous rules in the UCPR were identified as relied upon, most of which were irrelevant. Many paragraphs were devoted to demonstrating their irrelevance. These submissions were correct but unhelpful.

6. [22]

   As to the complaint concerning the amended notice of appeal, the layout of the amended notice of appeal left much to be desired. It was not entirely clear whether the existing provisions, which were not struck through as might have been expected by correct pleading, were intended to stand. The amendments, identified in italics, immediately followed the original paragraphs. Thus, Dr Dedousis and the Local Health District were identified (in italics) as the first respondents, but the names of the second and third respondents were not removed, as they should have been.

7. [23]

   On 10 April 2015 the respondents filed a notice of motion seeking to strike out the amended notice of appeal. (They correctly identified the first respondent as Dr Dedousis and the Local Health District in the notice of motion.) The motion was set down for hearing with the appeal. No practical purpose would be served by setting aside the amended notice of appeal. Accordingly, the motion should be dismissed.

8. [24]

   The one rule in the UCPR which might have been referred to, but was not, and may prove critical for the future of this proceeding, is r 31.36. That rule requires (unless the Court orders otherwise) that a person commencing a professional negligence claim file and serve with the statement of claim an expert’s report addressing breach of duty, the general nature and extent of any damage alleged and the causal relationship between the breach of duty and the damage. [8] The usual practice is for a plaintiff to obtain such a report in advance of preparing a statement of claim, so that the pleading may sufficiently reflect the opinions expressed in the supporting report of the expert. A plaintiff who fails to file such a report with the statement of claim should not expect the claim to proceed. [9] No such report has been filed and served in the present proceedings.

Orders

1. [25]

   Although there was no error in striking out the amended statement of claim, there was error in dismissing the proceedings in the absence of a proper reason for not exercising the discretion to grant liberty to replead. There nevertheless remains a real question as to whether this Court should allow the appellant a further opportunity to amend his pleading. It was by no means clear from the course of his submissions on the appeal that the appellant fully understood the elements of the tortious claim which he apparently wishes to pursue (nor was it clear, for that matter, that he understood that the grant of leave to appeal was limited to the dismissal of that part of his proceedings). Whether he is able to articulate a proper pleading without qualified legal assistance is unclear. So far that has not been achieved. In the course of submissions he indicated that he would obtain legal assistance. However, so far that has not occurred.

2. [26]

   Given these doubts, the Court is not prepared to grant leave to amend, but rather proposes to remit the proceedings to the Common Law Division where the appellant may, within a limited period, file a notice of motion seeking leave to amend and annexing any proposed further amended statement of claim. It will be a condition of such an application that the proposed pleading be accompanied by one or more reports from qualified experts (not being the appellant) supporting the essential elements of the pleading (and addressing the matters identified in r 31.36).

3. [27]

   Those conditions may take the appellant some weeks to fulfil. For example, it will be necessary to obtain an expert medical report commenting on the treatment of the appellant’s father in St George Hospital. It will also be necessary for the appellant to obtain a medical report (almost certainly from a different expert) as to any psychiatric harm he may have suffered as a result of any alleged breach of duty owed by the respondents to his father. (The Court does not assume that such harm has been suffered: in the course of the appeal, the appellant appeared to deny that he had suffered more than stress, humiliation and a waste of his time.)

4. [28]

   Given that the appeal is being determined some four weeks before the period over which many professionals take a long vacation, it is appropriate that the appellant have a reasonably extended period to comply with the conditions to be included in the orders of this Court, should he wish to do so. On the other hand, the proceedings should not be allowed to drag on without a prescribed limit. In these circumstances, the appellant should have until 30 April 2016. If a notice of motion seeking leave to amend, with the accompanying documentation, has not been filed and served by that date, the proceedings will stand dismissed. If a notice of motion with accompanying documentation is filed, the fate of the proceedings will be in the hands of a judge of the Common Law Division. The appellant should be under no misapprehension that, if the conditions have not been complied with in full, it is likely that the motion and the proceedings will be dismissed.

5. [29]

   The Court should make the following orders:

   1. (1)

      Allow the appeal from the judgment of 9 October 2014 and set aside the orders made by Price J.

   2. (2)

      In place thereof:

   3. (3)

      The appellant’s costs in this Court as an unrepresented litigant be his costs in the proceedings.